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Private Road Maintenance Agreement 2006-0789291 , , - ;~" . D__: It 8022 :2(JOt,-Cr7f.l9:2'~ 1 I " ft ! 111111111:11111111111111111111111111111111111111111111111111111111111 ; RECORDING REQUESTED BY \K~ NO\! 06 2006 1'38 PM I CITY OF POWAY if" nFFII-I,:l,L F-:[I-I-lr:[I'., '.-'"r~ [-I'r:lll1l-::11 :r'~ [", r,E -rlt-:LI!".H"_, OFFP-l Ilhtl~~I~IH'1 ,I ,~..',ITH C;Jur'JT"1 F,EU~iH[IEH AND WHEN RECORDED MAIL TO' ) H.E'-, 47 ("Wi ) F'L:.b[';. it; CITY CLERK ) il~~IOOOOIOO~I~~~.m~ CITY OF POW A Y ) POBOX 789 ) "0 POW A Y, CA 92074-0789 ) I. i06-0789291 ) (THIS SPACE FOE ~ECORDERTS USE) PRIVATE ROAD MAINTENANCE AGREEMENT FOR MUREL TRAILS, THE RESERVOIR ROAD AND SHARED DRIVEWAYS IN SHANTARA ESTATES (MAP NO. 14940) This Agreement is for the maintenance and repair of the portions of Murel Trails, the Reservoir Road and the shared dr i veways, which are part of Shantara Estates (Map No. 14940) , Murel Trails provides ingress and egress for Lots 1, 2, 4, 5, 6, 7 and 8 of Map 14940 01-03; the Reservoir Road provides ingress and egress for Lot 1 and 2; and, Lots 4, 5 and 6 share a portion of their driveways for ingress and egress. WHEREAS, it is the mutual desire of the parties hereto and described in Attachment "A", and all future lot owners, that Murel Trails, the Reservoir Road and the shared driveways be maintained in a safe and useable condition; and, WHEREAS, it is the mutual desire of the parties hereto to establish a method for maintenance and repairs of Murel Trails, the Reservoir Road and the shared driveways and for the apportionment of the expenses of such maintenance and repairs among existing and future Owners of residential dwelling units; and, WHEREAS, this document shall allow those parties as identified in Attachment "A", including future Owners, the l) lQ -'1'/-;1, . 8'-3 right, but not the obligation, to enforce full compliance of the terms and conditions of this agreement; and, WHEREAS, it is the mutual intention of the parties hereto that this Agreement constitute a covenant running with the land, binding upon each party identified in Attachment "A" and each successive Owner; and, WHEREAS, the City of poway shall be deemed to be a party hereto with the right but not the obligation to enforce full compliance with the terms and conditions of this Agreement, NOW, THEREFORE, it is hereby agreed as follows: l. Parties and Property. The parties hereto who shall be bound by the terms of this agreement shall include those property owners who have executed this agreement and their heirs, executors, administrators, assigns, transferees, and successo!"s in interest, This agreement shall also be binding on any future Owners of residences who come into existence by way of any of the parcels subdividing and becoming a separate legal lot with its own independent legal description. 2. Road. The roadway to be maintained shall be those private roads and driveways located in the City of Poway, California known as Murel Trails, the Reservoir Road and the shared driveways to Lots 4, 5 and 6, which were improved as a condition of approval of TTM 01-03 by the City of Poway, 3. Repair and Maintenance of Said Roadway. The repair, and/or maintenance to Murel Trails, the Reservoir Road and the shared driveways resulting from ordinary wear and tear, shall be borne by the parties as follows: Owners of properties along Murel Trails, the Reservoir Road and , the shared driveways or Owners of properties who utilize any portion of Murel Trails, the Reservoir Road and the s0ared driveways to access their residences, shall pay a proportionate share of any cost(s) and/or expense(s) incurred in the repairs and/or maintenance of Murel Trails, the Reservoir Road and the shared driveways, The Owner's proportionate share shall be based upon the length of Murel Trails, the Reservoir Road and the shared driveways utilized by the Owner to obtain access to their property. - 2 - . . 8024 In order to calculate each Owner's proportionate share, Murel Trails, the Reservoir Road and the shared portions of the driveways to Lots 4, 5 and 6 shall be separated into various segments which shall be determined by the amount of the road or driveway that will be utilized to access the residential pad that takes access from Murel Trails, the Reservoir Road or a shared driveway. An Owner's proportionate share shall be calculated by dividing each segment of the road(s)/driveway(s) by the total number of property owners utilizing that portion of the roadway for access. For property owners utilizing multiple segments of the road(s)/driveway(s) to access their residential pads, their total cost shall be calculated by adding together their proportionate share of the cost of repairing and/or maintaining each of the segments of the road(s)/driveway(S) utilized to access their residential pad, As an example, there are seven legal lots within Map No. 14940 whose Owners shall utilize the first segment of Murel Trails to access their residential pad, each Owner's share shall be 1/7 of the cost of repairing and maintaining that segment, For property owners utilizing additional segments of the roadway to access their property, their proportionate share shall be based upon adding together their pro-rata share of repairing or maintaining each of the segments that are repaired and/or maintained as follows' Murel Trails Segment l. Murel Trails form the beginning of the Subdivision to the south side of the entrance to the driveway for Lot 7 Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 Lot 8 60-Feet 1/7 1/7 1/7 1/7 1/7 1/7 1/7 Segment 2. Murel Trails form the south side of the entrance to the driveway for Lot 7 to the south side of the driveway entrance for Lot 8, Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 Lot 8 190-Feet 1/6 1/6 1/6 1/6 1/6 0 1/6 - 3 - . ~O25 Segment 3. Murel Trails form the south side of the entrance to the driveway for Lot 8 to the south side of the intersection of the Reservoir Road. Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 Lot 8 420-Feet 1/5 1/5 1/5 1/5 1/5 0 0 Segment 4. Murel Trails form the south side of the intersection of Murel Trails and the reservoir Road to the end of the cul-de- sac on Murel Trails. Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 Lot 8 310-Feet 0 0 1/3 1/3 1/3 0 0 Reservoir Road Segment 1. From the intersection of Murel Trails and the Reservoir Road to the east side of the driveway for Lot 1. Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 Lot 8 280-Feet 1/2 1/2 0 0 0 0 0 Segment 2. From the east side of the driveway entrance to Lot 1 to the end of the paved area for the Reservoir Road. Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 Lot 8 195-Feet 0 All 0 0 0 0 0 Driveway to Lot 6 Segment 1. From the cul-de-sac on Murel Trails to the south side of the driveway leading to Lot 4 and 5. Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 Lot 8 150-Feet 0 0 1/3 1/3 1/3 0 0 Segment 2, From the south side of the intersection of the driveway to Lot 6 and the driveway leading to Lot 4 and 5 to the - 4 - . . 8026 entrance to the pad for Lot 6. Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 Lot S 120-Feet 0 0 0 0 All 0 0 Driveway to Lots 4 and 5 Segment 1. From the intersection of the driveway to Lot 6 to the east side of the driveway for Lot 5. Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 LotS 150-Feet 0 0 1/2 1/2 0 0 0 Segment 2. From the east side of the driveway to Lot 5 to the entrance to the pad for Lot 4, Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 LotS 510-Feet 0 0 1 0 0 0 0 Driveway to Lot 5 Segment 1, From the intersection of the driveway to Lot 4 and 5 to the entrance to the pad on Lot 5, Length: Share: Lot 1 Lot 2 Lot 4 Lot 5 Lot 6 Lot 7 LotS 20-Feet 0 0 0 All 0 0 0 The owner of Lot 7 shall be responsible for repairing the driveway to the pad for Lot 7 and the owner of the Lot S shall be responsible for the repairs to the driveway for Lot 8. Based upon the above, if the entire length of Mure1 Trials was to be repaired, the owners of Lots 4, 5 and 6 would each pay the total of 1/7th of the cost of repairing Segment 1, plus 1/6th the cost of the repairing Segment 2, plus 1/5 the cost of repairing Segment 3, and 1/3 of the cost of repairing Segment4. The owner of Lot 7 would pay only 1/7 of the cost of repairing Segment 1. (a) If it is decided to repair a specific segment or - 5 - . . 802'1 segments or Murel Trails, the Reservoir Road or a shared driveway, then only those Owners who utilize that segment or segments or Murel Trails, the Reservoir Road or a shared driveway to access the pad on their property shall be obligated to participate in the cost or the repairs. (b) Repairs and maintenance or the road(s) and driveway(s) under this agreement shall be conducted in such a manner that it meets the City or Poway private road(s) maintenance standards. Repair and/or maintenance or the road(s)/driveway(s) shall include, but not be limited to, filling of pot holes, repairing cracks, repairing and resurracing of roadbeds, repairing and maintaining drainage structures, and other work reasonably necessary or proper to repair and preserve the roadway for all weather road purposes, Repairs and maintenance or road(s) shall not include - construction, excavating, and/or creating new roads or widening, upgrading, improving or repairing existing roads ror subdividing purposes, or paving existing unpaved roads. (c) Ordinary wear and tear or ordinary use, shall be understood to mean that gradual, and over a period or time, wearing which is caused by ordinary use. 4 . Extraordinary Damages. It shall be the obligation or any party to individually make and pay ror all repairs to the road(s)/driveway(s), and to all related structures (drains, gutters, etc, ) when the same have been damaged by extraordinary use by such party and/or his agents and/or employee (s) , Extraordinary use shall be understood to mean that use which causes irrunediate damage by any vehicle, or any damage caused by the shear size and/or weight or a vehicle. S. Upgrades to Road(s) , Any upgrades to the road(s) (i.e. , paving, widening, lighting, entry gate, etc. ) shall be at the cost or the party (ies) providing the upgrade(s), unless there is a vote consisting or at least seventy (70)percent of the Owners participating in this Road Maintenance Agreement who consent to the upgrade(s), 6, Initiation and Management of Repairs, (a) Any party to this Agreement may initiate repairs - 6 - . . 8028 and/or maintenance to Murel Trails, the Reservoir Road and any shared driveway by contacting the Home Owners Association and requesting their concurrence in repairing the road ( s) , If at least fifty one (51) percent of the Owners agree that the road(s) needs repair, the individual initiating the request to have the road(s) repaired, or an individual selected by a Home Owners Association, shall obtain at least three bids to have the road(s)/driveway(s) repaired. Each of the bids solicited shall have the cost for repairing or maintaining each section of the road(s)/driveway broken down in a manner consistent with Section 3, so that the proportionate cost to each of the Owners can be calculated. After receiving the bids, the individual who requested the bids shall contact the Home Owners Association and each of the Owners who would be asked to participate in the cost of the repairs and notify them of the scope of the repairs, the full cost of the repairs and the Owners proportionate share of the costs. The individual who requested the bids shall also analyze the bids that were submitted and make a reconunendation regarding which company, that submitted a bid, should be awarded the contract to perform the repairs. After notifying each of the Owners of the scope of work, the costs of the repairs and each Owners proportionate share, if at least seventy (70 ) percent of the Owners elect to have the repairs to the road(s) performed, the other Owners shall be obligated to participate in paying their proportionate share of the cost of the repairs, and a contract shall be awarded to have the repairs completed. However, prior to awarding the contract, each Owner shall be notified that at least seventy (70 ) percent of the Owners have elected to have to repairs performed and therefore a contract is to be awarded. If so requested by any Owner, each Owner shall be notified of which Owners have elected to have the repairs performed and which Owners, if any, are opposed to having the repairs performed. Once so notified, each Owner shall be obligated to sign a statement indicating that they will pay their proportionate share of the estimated cost of the repairs to be performed, plus the cost of any change order, which are approved - 7 - . . 8029 by at least seventy percent of the Owners. (b) If only a segment of the road(s) is to be repaired, only those Owners who will be requested to participate in the cost of the repairs to the road(s) shall be allowed to vote on the initiation of repairs or the award of a contract to have the work performed. (c) For purposes of this Agreement, the Owners of each parcels which utilize Murel Trails, the Reservoir Road and any shared driveway to access their property shall receive one vote per single family residence. (d) Notwithstanding the above, the parties hereto agree that in the event of an emergency, where the road condition is so dangerous that it genuinely creates a risk to life and/or limb, the individual(s) who owns fee title to the land upon which the right of way for the road(s) extends shall have the authority to repair that portion of the road which creates the dangerous condition, without first obtaining prior approval from the other Owners. In such an event, all Owners, who utilize that segment of the roadway/driveway, shall be obligated to pay their pro rata share of the cost of the repairs. (e) If in the City's sole judgment said road(s)/driveway(s) are not being maintained to the standards set forth in this Agreement, the City may thereupon provide written notice to all Owners to initiate repairs or maintenance within ninety (90) days. Upon failure to demonstrate a good faith effort to initiate and make repairs within ninety ( 90) days, the Owners agree that the City may make all needed repairs to meet the standards set forth in this Agreement and then to assess the costs to each Owner proportionately, as outlined in this Agreement, If the City elects to make necessary repairs, said work shall be without warranty by the City. 7. Objections to Repairs and/or Maintenance and or Costs, Any dispute over the road maintenance and/or repairs or a resident's contribution, shall be remedied by arbitration as set forth hereunder. An omission by any assessed property owner to give notice in writing within ten (10 ) days of his - 8 - . -8030 dispute of the assessment shall conclusively be deemed his consent to the amount of the assessment. When any disputed assessment is resolved and the decision is to have the disputed assessment paid by the party disputing the assessment, the party shall pay their share within twenty (20) days of that date of the decision. Any delinquent assessment shall be an obligation collectible by law. Any assessment that is delinquent beyond thirty (30) days shall carry with it an interest rate of ten percent (10%)/ per annum. 8. Arbitration. Any dispute among any of the parties to this Agreement respecting the interpretation of the Agreement or the application of any of its terms or the action taken by any party in accordance therewith, or the enforcement of the terms and conditions herein, shall be settled by arbitration pursuant to the California Civil Code, with the further understanding that the prevailing party shall be entitled to reasonable attorney's fees in addition to interest of ten percent (10%) per annum on any delinquent obligation owed. 9. Liabili ty . Any liabili ty of the Owners for personal injury to any agent hereunder, or to any worker employed to make repairs or provide maintenance under this Agreement, or to third persons, as well as any liability of the Owners for damages to the property of agent(s) or any such worker, or of any third person, as a result of or arising out of repairs and/or maintenance under this Agreement, shall be borne, as between the Owners in the same percentage as they bear the costs and expenses of such repair and maintenance, Each Owner shall be responsible for and maintain his own insurance. By this Agreement, the parties do not intend to provide for the sharing of liability with respect to personal injury or property damage other than that which is attributable to the repairs and maintenance undertaken under this Agreement. Each of the Owners agrees to indemnify the others from any and all liability or damages that results from, arises out of, or is attributable to any maintenance or repairs undertaken pursuant to this Agreement. Owners shall jointly and severally defend and indemnify and hold harmless the Homeowners Association, the City of Poway, and the City's engineers, and their consultants and each of their officials directors, officers agents, and employees from any - 9 - . .8031 liability, claims damages, losses, expenses personal to the agent hereunder, or to any Owner, any contractor, any subcontractor, any user of the road(s), or to any third person arising out of or in any way related to the use of, repair or maintenance of, or failure to repair or maintain the private road(s)/driveway(s) . Nothing in this Agreement, the specifications or their contract documents or the City of poway's approval of the plans and specifications or inspection of the work is intended to include a review, inspection, acknowledgment of a responsibility for any such matter, and the City, City's engineers, and their consultants, and each of their officials, directors, officers, employees and agents, shall have absolutely no responsibility thereof, 10. Covenant Running with Land. This Agreement, which shall be deemed and is intended to run with the land and be a restriction upon such property, shall be binding upon and inure to the benefit of the undersigned, his/her/their heirs, personal representatives, successors and assigns, forever or until such time as the said private road(s)/driveway(s) shall be dedicated to and accepted for use as a public street or thoroughfare by municipal government lawfully exercising jurisdiction over said private road. ll. Recording of Agreement. It is the purpose of the signators hereto that this Agreement be recorded and it is their intent that the obligation hereby created shall be a restriction upon and shall be secured by the said property and any subsequent transferee thereof, by acceptance of delivery of a deed and/or conveyance of the said property shall be deemed to have consented to and become entitled to enforce the terms of this Agreement to enforce the restriction therein created, such remedy to be cumulative and in addition to all other remedies at law or in equity. 12, Subsequent Users, In the event that a party with legal access not originally contemplated by this Agreement, gains access to said private road(s)/driveway(s), that party shall be required to subscribe to this Agreement, Should any parcel contemplated by this Agreement be split into multiple parcels (two or more) each newly created parcel shall thereupon be obliged under this Agreement and incur its portion of - 10 - , . . 8032 maintenance costs as set forth by this Agreement at the time a residence is built upon the parcel. 13. Amendments. This agreement may be amended upon a written two thirds (2/3) majority of all property owners who have executed this agreement and their heirs, executors, administrators, assigns, transferees, and successors in interest, An amendment to this Agreement shall also require the consent of the City, 14. Other. This Agreement shall be governed by the laws of the State of California. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity, and enforceability of the remaining provisions shall not hereby be affected thereby. IN WITNESS WHEROF, the parties listed in Attachment "A" have executed this Agreement on the dates set forth in Attachment "A" . ACCEPTED: CITY OF POWAY BY:#~/~~h~ Date: 0?-/r ( Approved as to form: ~~~ Date: ::i-Io-a&; City Attorney - 11 - 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of C\J.; Yvy V"l-; CJo- ?is. 8033 County of 9,t.v.. O\~ On ~Y"I \ ;;14 I'){:() 10 before me, Sv \lWIe... ~ f\ e.-ld, (\C\ /I1DTPrP-Y PlJBlIc" Name and Title of Officer (e.g., "Jane \:1oe. Notary Public") personally appeared <;~P.tf~ a.M', e A N~<<if. ILh.J ~I IDMt1 ~. ~(Y>(Yi <, Name(s) of Signer(s) o personally known to me -OR- ~ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) )Mare subscribed to the within instrument and acknowledged to me that ne/sJlle/they executed the same in ~/hl!r/their authorized capacity(ies), and that by l?is/~r/their I@ ~OU;': .. ,.co...' -I signature(s) on the instrument the person(s), or the entity upon ",. <"..,'. COMM, 111483623 m behalf of which the person(s) acted, executed the instrument. 1ii .a Notary publlc-Gallfomla !B WITN w . '" , SAN DIEGO COUNTY .. J ~ ~ :.~~:.,: y ~y.c~~~..~P:~~ly1~,~~. ( blic ----------------------------------------OPTIONAL----------------------------------------- Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Y".e~ .fu. Y1t.u.Ye..l1'"V4.-'~SI~ 'Pyj \)0..\(. '\Zo~ Title or Type of Document: lliV" ' v '5 ~ l?"~ ell Document Date: Ar'\ \ 'd-'t \ ;}-OO 10 Number of Pages: I'd-.. Signer(s) Other Than Named Above: ~ Capacity(ies) Claimed by Signer(s) Signer's Name: 5\-p~~(. ,A ,~()""'(i.s Signer's Name: ..rJ 1.0l5m:! ~, f'.JDvfiS o Individual o Individual o Corporate Officer o Corporate Officer o Titles(s): o Title(s): o Partner - 0 Limited o General o Partner - 0 Limited o General o Attorney-in-Fact o Attorney-in-Fact ~ Trustee RIGHT THUMBPRINT ~ Trustee RIGHT THUMBP13_1NT o Guardian or Conservator OF. SIGNER Guardian or Conservator OF SIGNER o Other' Top ofThumb here o Other' Top ofThumb here ..~~ . II Signer Is Represe~ting: ((, f .: Signer Is Representing: ((, t\)OV(;:' ~.\'YI\\J \q6\l \i\.W.,( ~Dv..-i '" y;.h\.\\':) \'\'\1 \1\t.L<;t '-<.-=-~ .....~~~:r : . . . 8034 C~L1FORNIAALL.PURPOSE ACKNOWLEDGMENT . State of California County of San Diego On I)/V-1 y 12,2()()(P before me, Phyllis Shinn, Notary Public Dale _ Name and Title of Officer (e.g. "Jane Doe, Notary Public") personally appeared t t?, #1< SiC L-t/!/ eft) Name(s) o! Signer(s) ~rsonallY known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the ~ -- - ~ :~=~: -I same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, i ~ NoIary PuIlIIc . catIIomla executed the instrument. , SCIn DIego CounIv j __ _ ~~:..~~9.:.~71 WITNESS my hand and official seal. OPT/ONAL Though the information below is not requlred'bylaw, it. may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document l1tle or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: o Individual o Individual o Corporate Officer o Corporate Officer 11I1e(s): 11I1e(s): o Partner - 0 Limited 0 General o Partner - 0 Limited 0 General o Attorney-in-Fact o Attorney-In-Fact o Trustee o Trustee o Guardian or Conservator RIGHT THUMBPRINT o Guardian or Conservator RIGHT THUMBPRINT OF SIGNER OF SIGNER o Other' Topol thumb here o Other' Top of thumb here Signer Is Representing: Signer Is Representing: II) 1994 Natlonal Notary Assoclation. 6236 Remmel Ave., P.O. Bolt 7184. Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder: Call TaU-Free 1-80()'878-6827 - , . . l{ B035 , . ( !'. ATTACHMENT A For Lots 1, 2, 4, 5, 6, 7 and 8 of Map No, 14940, By: EGN Holdings LLC c/o Mr. and Mrs. Elwood G. Norris, Trustees 16101 Blue Crystal Trail Poway, CA 92064 (Jw~~-~RR{~ Elwood G. Norris, Trustee , ~ ~ Dated this ~ q...~ day of ~PR1L , 2006. (Signature must be notarized. Notary form attached,)